Climate Change on Trial in Federal Court

California cities square off against oil companies in a debate over who’s to blame for a warming planet.

March 16, 2018
A rally for clean energy in San Francisco, February 2018

Ian Tuttle

Remember when Scott Pruitt wanted to do that red team/blue team exercise, publicly pitting those who accept the science of climate change against skeptics? The concept, first floated by the U.S. Environmental Protection Agency administrator back in mid-2017, was to hold a series of debates billed as a constructive dialogue between parties with markedly differing views. Many people, however, suspected it was little more than an ideology-laundering scheme: a means of legitimizing dirty, industry-generated climate denial and introducing it into the marketplace of ideas as clean, honest dissent.

Pruitt’s plan made headlines when it was announced, but then it just sort of disappeared. Last week we learned why: White House Chief of Staff John Kelly killed it. According to reports, Kelly saw the idea as “ill-conceived and politically risky” and made it clear to Pruitt by November that the debates simply wouldn’t be happening. Since then there’s been no more talk of them. (Or maybe Pruitt has just been muttering to himself about them from within his much-more-expensive-than-previously-reported “cone of silence.”)

But if Pruitt’s not doing anything next Wednesday, he should catch a plane to San Francisco—coach, please!—and visit the federal courthouse. There, for one day only, U.S. District Court Judge William Alsup will be presiding over a debate not unlike the one of the EPA administrator’s fantasies. As part of official proceedings in People of the State of California v. BP P.L.C., a lawsuit brought by the cities of Oakland and San Francisco against BP and other oil companies, plaintiffs and defendants have been asked to organize a climate change tutorial for the benefit of the court, in the form of a five-hour presentation of the issues from their respective vantage points.

Judge Alsup’s order reads like the instructions for a college essay contest. The first part of the presentation, he writes, “will trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historical cooling and warming, smog, ozone, nuclear winter, volcanoes, and global warming.” The second part “will set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.”

To help the adversaries structure their arguments, the judge has helpfully submitted a list of nine questions. The two shortest and simplest are also the most provocative: “What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?” and “What are the main sources of heat that account for the incremental rise in temperature on earth?”

People are already referring to the faceoff in Judge Alsup’s courtroom as the Scopes “Monkey Trial” for climate change. But there’s a big difference between this court proceeding and the one from 1925 that put the theory of evolution on trial and helped determine the future of science education in the United States. In the Scopes proceeding, one side genuinely believed in the scientific basis for Darwin’s theory, and the other side didn’t. While many Americans refuse to accept the science supporting climate change, BP and its oil-company codefendants in this case aren’t expected to deny the underlying scientific facts.

Instead, they will likely deny complicity in any scheme to cover up their role in perpetuating global warming and its many deleterious consequences. And in that difference is a sign that those of us who accept the reality of climate change are winning the larger cultural debate. Oil companies can and do get away with a lot of bad stuff. But one thing they know they can’t get away with is openly refuting the science showing that emissions from fossil fuels are leading to a warmer planet, and thus to extreme weather events, rising sea levels, ocean acidification, and more. To do so would be to place themselves so far outside of the mainstream scientific consensus that they couldn’t be taken seriously anymore.

Oil companies today are actually in a position not unlike that of tobacco companies in the 1980s, when they began adopting a legal defense very different from the one they had used in decades past. No longer did they try to maintain that smoking didn’t cause lung cancer. Everybody knew by that point that smoking caused lung cancer. Instead, they tried to argue that (1) you couldn’t prove that someone’s lung cancer came from smoking rather than some other source, and (2) that smokers had assumed the risk of cancer when they decided to take up the habit.

Brazenly blaming the victim may have achieved mixed results as a legal defense strategy, but it did very little to make smoking seem safe—or to make tobacco companies seem sympathetic. As a result, smoking began to gradually lose its social license: By 2015, the percentage of adult American smokers had dropped to 15 percent from a high of 42 percent in 1965.

Even if they don’t bother to refute the (irrefutable) data on emissions and climate change, it will nevertheless be fascinating to see what kind of presentation the defense puts on in Judge Alsup’s courtroom. There’s really no way for oil companies to come out of this thing looking good. If they acknowledge that the science is real, they lend support to the plaintiffs’ argument that oil companies have known all along that their activity contributes to climate change but have continued to engage in it anyway. On the other hand, if their spokespeople try to cast doubt on the science in any way, they risk looking like fools, or knaves, or both.

Climate deniers are fond of saying that “the jury’s still out” when it comes to the science behind global warming. That’s not true. Still, if the deniers want their day in court, they’re about to get one. But a word to BP and its codefendants: Please be reminded that you are under oath.

onEarth provides reporting and analysis about environmental science, policy, and culture. All opinions expressed are those of the authors and do not necessarily reflect the policies or positions of NRDC. Learn more or follow us on Facebook and Twitter.

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